Nullification is THE rightful remedy for all unconstitutional acts – usurpations of power. Understanding the five core principles that make up its foundation is essential to getting back on the path to the Constitution and liberty.
1. POWER FROM THE PEOPLE
Government is merely their agent.
This foundational principle of the American system is simple but powerful: all government power originates from the people. George Mason made this clear in the Virginia Declaration of Rights, emphasizing that government officials are not masters but servants:
“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them.”
This principle was carried forward to the framing and ratification of the Constitution, with many of the leading founders citing it as essential. James Wilson put it plainly:
“The truth is, that, in our governments, the supreme, absolute, and uncontrollable power remains in the people.”
Wilson’s words highlight that no government entity, law, or official stands above the people. Government exists because the people created it – and they can restrain or alter it as necessary. St. George Tucker underscored this point, rejecting any notion of government as master:
“It being one of the great fundamental principles of the American governments, that the people are the sovereign, and those who administer the government their agents, and servants, not their kings and masters.”
This wasn’t just theory – it was the backbone of the Constitution itself. First Chief Justice John Jay explained that the Constitution is essentially a set of instructions for agents hired to manage a portion of the people’s affairs, always under the people’s oversight:
“The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated – those persons are to receive that business to manage, not for themselves, and as their own, but as agents and overseers for the people to whom they are constantly responsible, and by whom only they are to be appointed.”
At its core, this principle means that government is authorized to act only within the powers the people have delegated to it through their Constitution.
2. CONSTITUTIONAL SUPREMACY
The Constitution – not the government – is supreme.
A government delegated power by the people must operate within the boundaries the people have established. In the American system, those boundaries are defined by the Constitution, which stands above all laws, policies, and government actions.
Thomas Jefferson made this point clear in the Kentucky Resolutions of 1798, warning of the dangers if the government were allowed to determine the scope of its own powers:
“The Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers.”
Jefferson warned that allowing government to judge its own powers would make constitutional restraints meaningless, replacing constitutional supremacy with arbitrary decisions based on the government’s own discretion.
Chief Justice John Marshall reaffirmed this principle in Marbury v. Madison, emphasizing that it is the Constitution – not any government official or body – that holds ultimate authority:
“In declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Marshall’s words highlight that not all laws are automatically valid – only those consistent with the Constitution carry legitimate authority. Anything beyond those delegated powers is null and void, no matter how popular, convenient, or widely accepted it may be.
“Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”
In short, no branch of government is supreme. The Constitution is. Without adherence to this principle, government power becomes unlimited, and the very purpose of having a written Constitution is lost.
3. VOID
All acts that go beyond the limits of the constitution are null and void.
This principle was understood long before the Constitution for the United States was written. In 1761, James Otis laid the groundwork regarding the unwritten British Constitution during his famous speech against the writs of assistance:
“An act against the constitution is void.”
Otis’s statement was more than a legal argument – it was a direct challenge to arbitrary power, one of the so-called grievances in the Declaration of Independence. If the government could impose measures beyond its authority without consequence, the concept of a constitution would be meaningless.
Thomas Jefferson carried this principle forward in 1774, emphasizing that British parliamentary acts violating rights weren’t just unjust or bad policy – they held no lawful authority.
“But that we do not point out to his majesty the injustice of these acts, with intent to rest on that principle the cause of their nullity; but to shew that experience confirms the propriety of those political principles which exempt us from the jurisdiction of the British parliament.”
Jefferson’s words highlight that unconstitutional acts don’t become legitimate simply because they are passed or enforced. Their lack of lawful foundation renders them empty of authority from the start.
“The true ground on which we declare these acts void is, that the British parliament has no right to exercise authority over us.”
Alexander Hamilton reinforced this idea in Federalist No. 78, making clear that any act exceeding delegated authority is fundamentally invalid.
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”
Hamilton’s next point is straightforward: allowing unconstitutional acts to stand would invert the entire system, placing government above the people it was created to serve within defined limits.
“To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
St. George Tucker echoed this sentiment, stressing that laws outside constitutional bounds are not laws at all.
“Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation.”
Tucker’s use of the term “usurpation” underscores the severity – these are not mere mistakes but outright seizures of power never granted.
Jefferson, writing again in 1798, put it succinctly – reminding that violations of constitutional limits are not just improper, but carry no legal weight whatsoever.
“Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
In short, unconstitutional acts carry no legitimate authority. Recognizing them as void is essential to preserving the limits of government power and protecting liberty.
4. DISOBEY
Words on paper don’t enforce themselves. Never did. And never will.
Recognizing that unconstitutional acts are void is only part of the equation. If those acts are treated as valid despite being a nullity, constitutional limits become meaningless. Identifying a usurpation as void is important – but without action beyond mere acknowledgment, the Constitution’s boundaries are easily ignored.
Discussing the Supremacy Clause, Alexander Hamilton made this point in Federalist No. 33, explaining that unconstitutional acts should not be accepted as law simply because they are declared as such.
“But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.”
Hamilton’s words then underscore the need for more than mere verbal opposition. Calling something a usurpation means nothing if it is allowed to stand unchallenged.
“These will be merely acts of usurpation, and will deserve to be treated as such.”
This principle wasn’t new to the founding generation. Algernon Sidney, whose writings greatly influenced American revolutionary thought, put it succinctly in Discourses Concerning Government (1680):
“That which is not just is not law, and that which is not law ought not to be obeyed.”
Sidney’s point is simple – laws that overstep rightful authority are not legitimate and should not be obeyed.
Patrick Henry embodied this principle when challenging the Stamp Act of 1765. He first took the position that the internal taxation of the Stamp Act was “illegal, unconstitutional and unjust.”
But rather than merely declaring it unconstitutional, he insisted that Virginians should not accept its authority.
“The inhabitants of this Colony are not bound to yield Obedience to any Law or Ordinance whatever, designed to impose any Taxation whatsoever upon them, other than the Laws or Ordinances of the General Assembly aforesaid.”
The First Continental Congress echoed this sentiment in its Declaration and Resolves (1774), firmly rejecting Parliament’s oppressive measures:
“To these grievous acts and measures Americans cannot submit.”
Ultimately, recognizing unconstitutional acts as void demands more than words – it requires the courage to treat them as such by refusing to comply with them in practice.
5. DUTY BOUND
It is not just a right, or a good idea – it is a duty to oppose unconstitutional acts.
St. George Tucker made this responsibility unmistakably clear:
“Acts of congress to be binding, must be made pursuant to the constitution; otherwise they are not laws, but a mere nullity; or what is worse, acts of usurpation. The people are not only not bound by them, but the several departments and officers of the governments, both federal and state, are bound by oath to oppose them”
Tucker’s words highlight a hard truth: complying with unconstitutional acts isn’t just misguided – it’s a betrayal of the constitutional oath.
Those who take the oath are obligated to actively resist, not enforce or passively comply with, federal usurpations. Allowing unconstitutional acts to stand makes them complicit in destroying the very system they swore to uphold.
“For, being bound by oath to support the constitution, they must violate that oath, whenever they give their sanction, by obedience, or otherwise, to any unconstitutional act of any department of the government.”
James Madison echoed this principle in the Virginia Resolutions of 1798, stressing that when the federal government exercises powers it was never granted, opposition is not a choice but a duty.
“In case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties there-to have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
Madison’s use of duty bound is no accident – it affirms that states, bound by oath to the Constitution, must act as a line of defense against federal overreach. Sitting back and hoping things improve is not an option.
Samuel Adams, writing as Candidus in 1771 took this obligation even further, making clear that defending liberty isn’t reserved for just politicians or other government officials – it’s everyone’s duty:
“The liberties of our Country, the freedom of our civil constitution are worth defending at all hazards: And it is our duty to defend them against all attacks.”
Adams understood that liberty doesn’t preserve itself. When attacked – whether by foreign enemies or domestic usurpers – it must be actively defended.
Thomas Jefferson summed it up bluntly in his draft of the Kentucky Resolutions. Nullification isn’t just a tool that should be tried later after everything else fails. It’s THE remedy for all unconstitutional acts.
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
THE KEY
Nullification isn’t just a historical concept – it’s the rightful remedy for all unconstitutional acts.
The Founders consistently affirmed that the people hold ultimate authority and that governments must stay within their delegated powers. When they don’t, it’s not just a right – but a duty – to stop them.
To wrap it up, nullification rests on five essential principles:
Power comes from the people – Government is nothing more than their agent
The Constitution is supreme – Not the government, not the courts, not just any federal law
Unconstitutional acts are void – They carry no legitimate authority, whether government agrees, or not
Words on paper aren’t enough – Limits on power mean nothing unless people are willing to treat unconstitutional acts as void and refuse to comply with them.
It’s not just a right – it’s a duty to nullify usurpations of power.
Understanding these principles isn’t just about knowing history – it’s the key to reclaiming our own Constitution and our own liberty today.
The post Nullification 101: Five Core Principles You Need to Know first appeared on Tenth Amendment Center.